ECHR ruling against Hungary strikes blow for refugee rights

Hungarian authorities kept the claimants in a transit zone for more than three weeks and then expelled them to Serbia.

By Dan Nolan in BudapestMarch 17, 2017

Hungary violated the European Convention of Human Rights (ECHR) by confining two Bangladeshi asylum seekers in a transit zone near Roszke on the Serbo-Hungarian border in the autumn of 2015, the European Court of Human Rights ruled unanimously on March 14. The ruling is open to appeal.

Md Ilias Ilias and Ali Ahmed, Bangladeshi nationals born in 1983 and 1980, submitted applications for refugee status at the border on September 15, 2015. Hungarian authorities kept them in the transit zone for more than three weeks and expelled them to Serbia on October 8. The court held that, “Hungary was to pay each applicant €10,000 in respect of non pecuniary damage and €8,705 for costs and expenses”.

“It was quite inconceivable how the applicants could have pursued any judicial review of their detention in the transit zone in such circumstances, their detention not having been ordered in any formal proceedings or taken any shape of a decision,” the ECHR said.

The verdict could now set the scene for a showdown between the EU and the Hungarian government. “The ECHR has declared massively unlawful both main pillars of the Hungarian government’s new asylum policy,” Gabor Gyulai, Refugee Programme director at the human rights NGO the Hungarian Helsinki Committee, told bne IntelliNews. The verdict deemed unlawful Hungary’s key policies of automatically pushing refugees and migrants back to what it deems the “safe, third country” of Serbia and the automatic, indiscriminate detention of all asylum-seekers in transit zones.

Based on this judgment, the detention of over 11,000 asylum-seekers without any detention order and without any judicial oversight at Hungarian transit zones since their construction in September 2015 has been ruled unlawful. While it is unlikely that these persons would seek redress in Strasbourg now—nearly all of them have left Hungary—those currently being held in the transit zones or the hundreds who will be transported to them later this month may seek compensation by this means, leading to dozens or even hundreds of similar cases at the Strasbourg Court.

The Hungarian government has shown no sign of changing its strict policy of deterrence, however: the day after the judgement was made, President Janos Ader authorised a bill to institute similar treatment for all asylum seekers in Hungary, an indication of the extent to which Hungary’s democratic checks and balances have been weakened under Prime Minister Viktor Orban.

The law is scheduled to enter into force sometimes at the end of March, meaning that all asylum-seekers in the country – either in “asylum prisons” or open reception facilities – will also be transported to the transit zones.

Push-backs and internment in transit zones are not the only measures that has made Hungary an outlier on the treatment of refugees and migrants in the EU. The country is also in the process of constructing a second, electrified border fence, has cut nearly all subsidies to recognised refugees, and has eliminated procedural safeguards and judicial reviews. Hungary has also arbitrarily limited the number of asylum-seekers admitted to its transit zones on the Serbian-Hungarian border, from 15 a day, then 10, then as of January 2017 only five per day, and on weekdays only.

Gyulai told bne IntelliNews that, “these rules are totally blind to individual vulnerabilities and protection needs and treat refugees as if they were ‘illegal migrants’, denying the country’s protection obligations. This clearly goes against the international institution of asylum, which also gave protection to hundreds of thousands of Hungarians fleeing from the communist dictatorship.”

In 2016, Hungary once again had by far the lowest “recognition rate” on asylum claims in the EU. While the EU average was 63%, in Hungary this rate was only 9%, Eurostat found. That rate was 72% in Austria, 69% in Germany, 83% in Slovakia – a country whose government has also employed virulent anti-refugee rhetoric – and 44% in Bulgaria. Around two-thirds of the asylum seekers in Hungary came from war-torn Syria, Iraq and Afghanistan, yet last year Hungary rejected 91% of its Syrian applicants, 87% of the Iraqis and 94% of the Afghans.

The main impact of the March 14 judgement could ultimately be on the EU. While the Strasbourg Court interprets the European Convention on Human Rights and not EU law, it has historically had a strong impact on how human rights are interpreted within the EU context. The rights in question – the right to liberty, prohibition of torture and inhuman/degrading treatment – also appear in the EU Charter of Fundamental Rights, which sets mandatory standards for EU organs and member states. This means that the European Commission will have to follow the ECHR’s assessment and will have no other choice than concluding that the policy of massive push-backs to Serbia and the indiscriminate arbitrary detention of asylum-seekers broke EU law.

Gyulai said “in any democratic society based on the rule of law, such a judgment would lead to an immediate change in policies – this is apparently not the case in Hungary. This landmark judgment also sends a strong message to the EU.

“After long silence, it is high time for the European Commission to step up against practices violating EU asylum law, be it in Hungary or elsewhere. If it fails to do so in Hungary, other member states will feel free to introduce similar unlawful and inhuman measures and the project of the Common European Asylum System will be no more than a historical failure,” he told bne IntelliNews.

Dimitris Avramopoulos, the European Commissioner for Migration, Home Affairs and Citizenship, has announced that he intends to visit Hungary in the near future. This judgment will provide him with strong means to persuade the Hungarian government to change its legislation and policies on refugees and migrants.

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